The Pilot's Lounge #82: Integrity, Responsibility And The Lack Thereof

In a time of increasing challenges to general aviation, it is more vital than ever that pilots and lovers of flight stick together when threatened with yet one more airport closure or restriction. AVweb's Rick Durden recently dealt with pilots who didn't even support saving the very airport where they live.

About the Author ...

Rick Durden is a practicing aviation attorney who holds an ATP Certificate, with a type rating in the Cessna Citation, and Commercial privileges for gliders, free balloons and single-engine seaplanes. He is also an instrument and multi-engine flight instructor. Rick started flying when he was fifteen and became a flight instructor during his freshman year of college. He did a little of everything in aviation to help pay for college and law school including flight instruction, aerial application, and hauling freight.

In the process of trying to fly every old and interesting airplane he could, Rick has accumulated over 6,000 hours of flying time. In his law practice Rick regularly represents pilots, fixed base operators, overhaulers, and manufacturers. Prior to starting his private practice, he was an attorney for Cessna in Wichita for seven years. He is also a regular contributor to Aviation Consumer and AOPA Pilot.

Every once in a while something happens that causes me to escape to the Pilot's Lounge here at the virtual airport after everyone has gone home for the evening. It is an excellent place to go when I need to regain my perspective on matters affecting the world of aviation. Sitting in one of the big, old recliners and looking out at the airplanes sleeping at their tiedowns helps me cool off. Besides, some time alone in the Lounge is a heck of a lot cheaper than therapy, and probably more effective.

Looking out at the taxiway lights, I thought about the events earlier in the evening. I'd just done something that few lawyers ever do: testified as a witness in a trial. Even though it was in small claims court, it was a strange experience to be the one answering the questions rather than asking. While I had no stake in the outcome of the trial, the very fact that it was occurring was extremely distressing to me, because it was, in my opinion, a symptom of something that is a serious threat to the future of general aviation at the grassroots level: pilots who freeload on the efforts of others, who refuse to accept any responsibility to pay their fair share to protect the well-being of their local aviation community. After all, when the smoke clears, it's local action that is going to determine whether we have airports from which to fly.

I'm about to recount a series of recent events and I'll make it clear right now, I'm going to express strong opinions about the behavior exhibited by some of the actors. I've also changed some of the details to protect the identity of those that seem to me to be the guilty parties. My comments are my opinions only, and they could very well be wrong. I've certainly been wrong before.

The Airpark

Airpark (not the one described in the story)

I became aware of a residential Airpark one afternoon when the person I'll call the Original Owner (he owned the land that became the Airpark) came to my office and told me that the current owners of the property immediately off the threshold of one end of the sole runway had allowed trees to grow within a few yards of the runway end. The trees were already about 40 feet tall and were jeopardizing the use of the roughly 2,500-foot runway. The runway threshold had already been displaced nearly 1,000 feet and if the trees grew much taller, the Airpark would be forced to close. He asked whether anything could be done to get the owners of the trees (I'll call them the Obstruction Owners) to trim the trees because of safety concerns. I did a little research and found that there was a state law that provided for an "approach protection area" off each end of runways at public-use airparks in the state.

The law created a protected glidepath down to the end of runway as a safety protection for the people in the airplanes using the runway. The law declared anything that stuck up into the approach protection area was an aeronautical hazard and, by law, a public nuisance. It meant that the Airpark could demand that the Obstruction Owners trim the trees and keep them out of the approach protection area. The law kicked in once the state aeronautics commission inspected the approach protection area and made a formal hazard declaration. At that point the state would direct the Airpark to act to get the trees trimmed and -- if it did not -- the state could close the Airpark because of the risk to the traveling public.

The Airpark is now owned by the people who own the land around the runway. The Original Owner had subdivided the property in the late '70s to create the residential Airpark, and someone had drawn up deeds giving each landowner an easement to use the runway and taxiway; made each one responsible for his or her share of the cost of the maintenance of the runway and taxiway; and set up an owners association to run things, as one would expect. The owners association immediately leased an additional few hundred feet of land so that they'd have a half-mile-long runway. A few years later they decided that it would be a good idea to become a public-use airport, rather than continue as a private airport, so as to get the protection afforded by state laws regarding obstructions around an airport. They applied for public-use status in 1982 and -- after a two-year application process -- were granted state certification. The association collected dues -- which it used for maintenance of the Airpark -- and regularly was allowed to go onto the land of the friendly, adjacent landowner to cut back brush that grew up off the end of the runway so the glidepath stayed clear.

In the late '80s the land off the end of the runway changed hands. The new owners -- the Obstruction Owners -- refused to allow the Airpark work crews to cut the brush as they had been doing for years. Polite requests and letters on the subject were unsuccessful. The Obstruction Owners demanded an annual fee from the Airpark folks before the Airpark owners would be allowed to come onto the land and cut the brush and trees. At the same time the Obstruction Owners were heard to make public comments that they were going to make a lot of money off of the Airpark, although they didn't say how. The Airpark association would not agree to pay what some opined was extortion on the part of the Obstruction Owners. Meanwhile, the trees had taken hold and were growing ever taller, meaning that some of the users of the Airpark could not take off in one direction and have any safety margin over the trees.

Negotiation

I met with most of the members of the Airpark association and discussed what I had learned in my research. The Original Owner, although retired and having had lost a leg to illness and no longer flying, was determined to save the Airpark, as were all of the owners I met. The association directed me to proceed with negotiations with the Obstruction Owners and file a lawsuit if necessary. The Original Owner said he would front the money for legal fees. (I charged a lower hourly rate for my work because I believe strongly in the cause of keeping airports open.)

Negotiations with the neighbors went absolutely nowhere. I would talk with them on the phone and get wildly varying responses to the request to trim the trees. One day they would agree to do it, the next day they would refuse, and on the next several days they would agree to do so but made demands for annual payments from the Airpark that ranged from $250 to $3,500 for the Airpark to have permission to come in and trim the trees at the end of the runway. Because the state law made it clear that the Obstruction Owners could not allow anything to grow up into the approach protection area, the association said that it would not pay the neighbors to get them to do what they were obligated to do under state law.

Official Hazard

The state aeronautics commission stepped in and directed the Airpark owners to act. It made a formal hazard-finding regarding the trees. The choices the Airpark owners had were suddenly limited to: (1) Sue the neighbors to enforce the law and get the trees trimmed; (2) Shut down the Airpark; or (3) Drop the public-use designation and become a private airport with trees that would soon be over 50-feet tall at one end of the runway. Interestingly, in the association meetings there was never any consideration given to the options of taking the Airpark private and accepting tall trees or shutting the Airpark down. I got the impression that those actions simply weren't acceptable. I also wondered just how far the values of those homes with hangars would erode if the Airpark ceased to exist or if those trees got so tall that only airplanes such as a Super Cub, Husky or Helio Courier could use the runway.

After negotiations with the obstruction owners failed, I filed suit on behalf of the Airpark association to have the public nuisance abated. If the judge agreed, he would issue an order directing the Obstruction Owners to trim the trees and keep them trimmed, at their cost. It turned out that this was the first such case ever filed in that state and the judge looked very carefully at the issue of forcing a landowner to trim trees because of a state-mandated glidepath over his or her land. The judge first examined the state aeronautics code and declared that each and every person who had a property interest in the Airpark had to be named as a plaintiff (a person bringing the lawsuit). He said that because the state had directed the Airpark to act, each and every owner was obligated to be involved in protecting the rights of the Airpark.

After all the briefs were filed and oral arguments completed, the judge ordered that the Obstruction Owners had to trim the trees and keep them trimmed. He also ruled that at the very moment the Airpark became a public use airport, the "approach protection area" came into being. That airspace over the adjacent land was a "taking" of property and would have required compensation to the adjacent landowner at the time; however, that owner never requested it. Because the Obstruction Owners bought the land some time after the Airpark had become a public-use Airpark and the approach protection area was already in effect over the land, they made their purchase at a price that reflected the value of the land with the glidepath in place. Therefore, the obstruction owners were not entitled to any compensation from the Airpark.

The Obstruction Owners trimmed the trees.

I'm told the Airpark owners celebrated.

The Postscript

At a subsequent meeting of the Airpark association, one member made a motion to reimburse the Original Owner for the money he spent in saving the Airpark. I looked at the minutes of that meeting: The motion passed on a 7-1 ratio. All of those who voted to reimburse the Original Owner immediately paid their share of the costs.

Sadly, there were those who, perhaps because they didn't much like the concept of democracy and abiding by a majority vote, refused to pay their share. Regardless of the fact that the holiday season was approaching -- a time of good will and expressing appreciation to those who have done things for others (such as increasing the value of homes because the runway is again usable) -- they stiffed the Original Owner. He was deeply hurt, and I heard that the owners who had recognized their responsibility and shown integrity by paying their share were rightfully indignant that they had in their midst what were, in my opinion, freeloaders.

The Original Owner went to small-claims court to try to collect from the association members who wouldn't pay. He called me as a fact witness to testify about the lawsuit. The hearing was scheduled to begin at 4:00 p.m., a time that seemed to me to be a little late to allow testimony about the complexities of approach protection areas and how trees on one piece of property could adversely affect a runway located on other property. The hearing didn't start until after 4:30 p.m. As I listened to the testimony in the previous small-claims case, I heard the judge explain to a witness that small claims court wasn't what one would call a "real trial"; it was more like mud wrestling. Those were the words the judge used, and I thought they were funny at the time, but they proved prophetic. The judge seemed tired by the time the Original Owner's hearing started; yet he managed to hear several witnesses as the evening drew on, and worked hard to understand the issues and fact. In the end he relied on some language in the deeds that set up the residential Airpark, which made the landowners responsible to pay for maintenance of the runway and taxiway but not for paying for anything on adjacent property. He ruled that because the trees were on adjacent property and not on the runway or taxiway, the original owner couldn't force those who refused to pay to do so.

Freeloaders in Aviation Hurt All of Us

Afterwards, I listened to the "winners" gloat out in the parking lot and felt intense disgust. These were people who had willingly signed an agreement to maintain an Airpark when they bought their property and then engaged in actions I believe were utterly indefensible and beneath contempt. By taking a free ride, by taking advantage of those who truly were willing to step up and pay the freight to keep their Airpark open and alive, they took the short-term gain without apparent cost to themselves: Their homes jumped in value by a sum that I suspect is far more than the little bit they should have paid as their share to keep their runway open and accessible. Yet by their reprehensible inability to accept their responsibility to their neighbors, to their portion of the aviation community, they have set the stage for disaster the next time the Airpark is threatened by external forces. They have made it that much more likely that -- when the next challenge comes -- those who shouldered their obligations and then were played for suckers are going to be less likely to step up again.

Maybe the next time the Airpark will not fight back and will be closed; and those few who were too cheap to even thank the Original Owner for leading the earlier fight will, I suspect, be the ones to whine the loudest about the decrease in the values of their homes.

We are in a season that has special meanings for virtually all of us in this country; a season that is characterized by giving and reflection on how we might better ourselves in a new year. Perhaps we can learn from the Airpark experience and resolve to give back something to aviation for the gifts it has given us. We can make that contribution to the organizations that are fighting for our rights and privileges as pilots; attend those meetings where the community is debating the future of the local airport and speak out in support of it; go to the airport council meetings and help show the folks running the council that general aviation is important; run for the slot to fill the vacancy on the airport commission so that there is another voice in support of general aviation; or even just send a letter-to-the-editor in support of general aviation. There is much we can do and there is much damage that can be done by doing nothing; or worse yet, by riding on the backs of those who are doing the lifting, because our weight may be the extra few pounds that break those backs.